Summary: Miss X complained the Council failed to carry out the Education, Health and Care (EHC) assessment process for her son, within statutory timescales. She also complained the Council failed to arrange alternative provision. The Council was at fault. It failed to properly consider its section 19 duty and did not complete the EHC assessment process and issue the final EHC Plan within statutory timescales. Because of the fault, Miss X and her son suffered distress, frustration and uncertainty. Her son also lost the opportunity to receive the support in his EHC Plan sooner. The Council will apologise to Miss X and her son and make symbolic payments.

The complaint

1. Miss X complains the Council failed to:
• carry out the Education, Health and Care (EHC) needs assessment and issue an EHC Plan for her son, who I will refer to as Y, within statutory timescales.
• arrange appropriate assessments for Y during the EHC needs assessment process.
• arrange alternative education provision for Y in line with its section 19 duties.
2. As a result, Miss X says she and Y have suffered distress and frustration, and an impact to their mental health. She says Y has also not had his needs met due to a lack of appropriate education and support.
3. Miss X would like the Council to take accountability for its failings and offer a financial remedy.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in future we may recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
8. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(1), as amended)
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted). 

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What I have and have not investigated

10. I have investigated matters in this case from mid-to-late March 2024, when the Council received the request for an EHC Plan for Y, to mid-September 2025 when the Council issued the final EHC Plan. I reference matters outside of these dates for context.
11. Miss X brought her complaint to us in October 2025, meaning events that took place before October 2024 are late. The events relating to Miss X’s complaint date back to 2023. I do not consider there are good reasons to exercise discretion to consider matters as early as 2023. However, I have exercised discretion to investigate from mid-to-late March 2024. I consider it is sensible to investigate from this point, as it marks the start of the EHC needs assessment process.
12. Miss X had a right of appeal to the SEND Tribunal in September 2025 when the Council issued a final EHC Plan for Y. As such, I have not investigated matters after this point for the reason outlined in paragraph 6.
13. I have not investigated Miss X’s complaint that the Council failed to arrange appropriate assessments for Y during the EHC needs assessment process. This is because we cannot look at matters which happened before the appeal right came into effect, which can be considered by the SEND Tribunal. This includes certain matters relating to the assessment process, such as which reports the Council obtained.

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How I considered this complaint

14. I read Miss X’s complaint and spoke to her about it on the phone.
15. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
16. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

EHC Plan 

17. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 

Timescales and process for EHC assessment 

18. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).  

Advice and Information for EHC needs assessments

19. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP). 

Section 19 duty

20. Section 19 of the Education Act 1996 says that the council must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.

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What happened

21. This is a summary of events outlining key facts and it does not include everything that has happened in this case.

EHC assessment process

22. The Council received the request for an EHC Plan for Y in mid-to-late March 2024. It sent Miss X its decision to assess in late April 2024.
23. The Council received the EP report in late April 2025. The Council sent Miss X its decision not to issue an EHC Plan for Y in late June 2025.
24. A mediation meeting was held in late July 2025. The Council overturned its original decision, and it agreed to issue an EHC Plan for Y.
25. The Council issued Y’s draft EHC Plan in early September 2025. It issued the final EHC Plan in mid-September 2025.
26. The Council says there was a delay between its decision to assess and its initial decision not to issue an EHC Plan, due to waiting for the outstanding EP report and EP capacity issues. It apologised to Miss X for the delay.

Section 19 duty

27. Miss X says Y had no education from August 2023. However, my investigation starts at mid-to-late March 2024, as outlined above in paragraphs 10 and 11. As such, I have only referenced events after this date.
28. The Council says it was informed by Y’s school he was not attending school, at the end of April 2024. The school referred Y to a different setting from late June 2024 to early October 2024.
29. This provider made a referral to the Council for home tuition in mid-to-late October 2024. It told the Council Y’s anxiety meant he could not engage with school, and it asked the Council for 15 hours of home tuition each week, to start as soon as possible.
30. The Council arranged the home tuition and Y received this from November 2024 to July 2025.

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Analysis

EHC assessment process

31. The statutory timescale for completing an EHC needs assessment and issuing a final EHC Plan is 20 weeks. In this case, the process began in mid-to-late March 2024 when Miss X requested an EHC Plan for Y. The Council issued its decision to assess within the six-week statutory timeframe. But there were delays after this. The Council should have issued Y’s final EHC Plan by early August 2024. But, it was issued in mid-September 2025. This is a delay of roughly 13 months.
32. We take the view councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timescales here was fault and has caused Miss X distress and frustration and delayed her right of appeal. Had the Council issued Y’s EHC Plan in line with statutory timescales, he would have had the EHC Plan in place for the start of term in September 2024. Due to the delays, Y lost the opportunity to receive the support in his EHC Plan, and it has caused uncertainty to Miss X about the provision Y would receive, and whether having this support in place sooner would have helped his engagement with learning. This is an injustice.
33. We recognise the national shortage of EPs available to complete reports for EHC needs assessments, leading to delays in the rest of the EHC Plan process. Our current approach is to remedy the injustice caused by this by recommending a symbolic payment of £100 per month from the date the final EHC Plan should have been issued, to the date the Council received the EP report. I have made a recommendation to reflect this. I have also made a recommendation for the continued delay after this period, to remedy the remaining injustice to Miss X and Y.
34. The Council says it has taken action to improve timeliness and capacity issues, including commissioning interim EPs and creating assessment cohorts. This is part of the Council’s SEND Improvement Plan. As such, I have not made service improvement recommendations relating to the delays in this case. We will continue to monitor this progress through our casework and will make service improvement recommendations where appropriate. I also have not recommended the Council apologise to Miss X for the delays, as it has already done so in its complaint response which I consider is appropriate.

Section 19 duty

35. For the period I have investigated, the Council says it became aware Y was out of school at the end of April 2024, when Y’s school told it he was not attending. So, at this point the Council should have considered whether it had a section 19 duty to provide suitable alternative provision. But, the Council placed the responsibility of alternative provision on Y’s school and did not properly consider its section 19 duty until October 2024 when it received a referral for home tuition.
36. It is the Council’s responsibility to decide whether it has a duty to make alternative provision. The Council’s failure to properly consider whether it had a section 19 duty to provide alternative provision when it was made aware Y had stopped attending school in April 2024 was fault. As was its failure to consider whether the arrangement Y’s school had made for him to attend a different setting was suitable and accessible.
37. This causes uncertainty to Miss X and Y about whether the Council would have made arrangements to provide alternative provision to Y, and what alternative provision he might have lost the opportunity to receive, had the Council properly considered its section 19 duty when it was made aware he had stopped attending school. This is an injustice.
38. However, when the Council received a referral in October 2024 for home tuition, from the evidence I have seen, it considered its duty and arranged this in a timely manner. Y began home tuition a couple of weeks later. I do not consider there was fault by the Council here.
39. I have not made service improvement recommendations in this case relating to the Council’s section 19 duties. This is because the Council agreed to produce an action plan in a case where we found similar fault, to ensure compliance with its section 19 duties. The plan sets out how Council staff will consider whether a child is receiving suitable education and how it will take timely action to arrange alternative provision where required.
40. We have published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.

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Action

41. To remedy the outstanding injustice caused to Miss X and Y by the fault I have identified, the Council has agreed to take the following actions within four weeks of my final decision:
42. Apologise to Miss X and Y for the injustice caused by its failure to properly consider its section 19 duties at the end of April 2024 when it was informed Y had stopped attending school. This apology should be in accordance with our guidance Making an effective apology.
43. Pay Miss X £850 for the injustice caused by the EP related delays in the EHC needs assessment process. This has been calculated at £100 per month of delay, from early August 2024 when the Council should have issued the EHC Plan, to late April 2025 when the Council received the EP report, as outlined in paragraph 33.
44. Pay Miss X £300 for the injustice caused by the Council’s further delay in the EHC needs assessment process after it received the EP report.
45. Pay Miss X £300 for the injustice caused by the Council’s failure to properly consider its section 19 duty at the end of April 2024 when it was informed Y had stopped attending school.
46. The Council should provide us with evidence it has complied with the above actions.

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Decision

47. I uphold Miss X’s complaint and find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman